Opinion: A ruling against affirmative action would be a setback

On Wednesday, the Supreme Court takes on affirmative action when it hears Fisher v. University of Texas. Abigail Fisher applied to the University of Texas-Austin in 2008. Under the University’s admissions policy, the top ten percent of every high school graduating class is guaranteed admission. Although Fisher missed this cutoff, she was eligible to apply under a formula taking into account various factors, including race. She was denied admission and sued.

At issue here is whether the University discriminated against Fisher by considering race and ethnicity in admissions. Fisher says she was denied admission because she is white. The University stands by its policy – as well they should. Yet despite the legal, social, and economic justifications for affirmative action, the Court may be leaning towards a misguided decision in the other direction.

Ironically, the Court’s decision will not affect Fisher, who graduated from Louisiana State University this year. But it could have tremendous consequences for Latinos. The New York Times notes that the Court eliminating racial preferences would reduce the number of African-American and Hispanic students at virtually every selective college and graduate school. The ruling will have implications for private as well as public institutions.

Up to now, two major cases have shaped the use of race-based policies in college admissions. In the University of California v. Bakke (1978), the Court ruled that the use of racial quotas was unconstitutional. In Grutter v. Bollinger(2003), the Court upheld the University of Michigan’s admissions system, which considered race and ethnicity along with other factors on an individual basis. Fisher’s circumstances most resemble those in Grutter, where the court found a “compelling state interest” in ensuring diversity in the student body. While the University of Texas may consider an applicant’s race and ethnic background, it also looks at leadership, school activities, language barriers and work history. Fisher will be hard pressed to establish that being white was the sole factor in her being denied admission.

Taking a broader view, consider that there are many forms of affirmative action. Anyone who receives a special preference in applying to college is the beneficiary of affirmative action. Top athletes benefit from affirmative action. The children of alumni benefit from affirmative action. In-state residents benefit from affirmative action. Why should we single out only race or ethnicity-based affirmative action as a problem to be eliminated?

Studies show that a diverse student body helps institutions of higher learning fulfill their educational mission. Not only do minority students benefit from affirmative action, so do other students who are brought into contact and engage with people from different circumstances.

Affirmative action also serves an economic purpose. Major American corporations are firm believers in affirmative action, because they need a diverse workforce. In Fisher, corporations from Aetna to Wal-Mart signed off on a brief in support of the University of Texas. U.S. federal agencies and the military submitted a similar supporting brief, noting that they depend on a pool of college graduates that “look like America” in order to further critical national interests.

In accepting Fisher, the Court has set the stage for judicial activism. Unlike their decision on the Affordable Care Act, there are no conflicting lower court rulings to clear up. This is troubling, because it seems as though the Court has its own agenda. A decision against affirmative action would make it harder for Latinos and other minorities to access higher education. It would overturn the precedent set by Grutter. It would counter the views of legendary Justice Felix Frankfurter, who once defined the boundaries of academic freedom. In 1957, he wrote that the “four essential freedoms” of any university are deciding for itself “who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”

The Court wades into affirmative action at its own peril. The potential rewards are limited, while the risk of undermining the judiciary is significant. A ruling against affirmative action would be a setback for the Court, a setback for Latinos, and a setback for society.

Raul A. Reyes is an attorney and member of the USA Today Board of Contributors.